Kelley v. Richardson
| Decision Date | 20 April 1888 |
| Citation | 37 N.W. 514,69 Mich. 430 |
| Court | Michigan Supreme Court |
| Parties | KELLEY v. RICHARDSON. |
Error to circuit court, Alpena county; FRANK EMERICK, Judge.
Action by Robert J. Kelley against Diana Richardson for attorney's fees. Plaintiff recovered judgment for $20,000, and defendant brings error.
This case was first argued at the October term of 1887 before three judges. But as a case involving the same questions was early in the January term, 1888, argued before the full bench, it was thought proper to have the present case presented so as to be decided by the same judges. It was therefore reargued, with some additional arguments, and submitted for our final action. Plaintiff recovered judgment below against defendant for $20,000 for services rendered her as executrix and sole legatee and devisee of her husband's estate. These services were sought from him as an experienced attorney, solicitor, and counselor. The proof of value was chiefly given, on both sides, by members of the legal profession; and the only questions presented by this present record relate to the competency of this testimony as embracing opinion. On the reargument the dispute was entirely narrowed down to this. It will not be necessary, therefore to set out at length the slightly-varied questions on which each of the several witnesses was examined. With an outline of the controversy to explain it, the precise questions of law can be put in shape without much repetition.
Charles W. Richardson, who died in June, 1886, was an extensive dealer in lumber products in Alpena county, having large tracts of pine, mills, and much personal property and securities; all aggregating about $1,000,000 and over. When he died, the business was in full operation. Nearly 30 years before his death, while living in Maine, and doing business in Canada and New England, he made a will giving everything to his wife. Many years ago, he came to Michigan; and most of the property, real and personal, which he left behind him had been acquired during his residence here. He never had children, but had collateral heirs. After his death defendant had his will presented for probate. Meanwhile the business was continued as usual. The heirs at law threatened and made preparation to oppose the probate of the will, and defendant understood it. She, in the beginning, employed plaintiff to aid her in all her business, and in the expected contest. The will was admitted to probate. The contest was compromised by a payment of $120,000 to the heirs. Defendant refused to pay plaintiff for his services, and he sued her, and recovered, as before stated. She brings error. A good many witnesses appear to have been sworn on both sides. The only witnesses sworn for plaintiff, whose testimony appears, were witnesses Dickinson, Russell, Baker, Atkinson, and Griffin, of the Detroit bar, and Mr. Sleator, of Alpena, who had been associated with plaintiff in some of the services. Except Mr. Sleator, all these witnesses testified by deposition taken before the trial. Other witnesses, not named, also testified. Defendant examined several gentlemen from Detroit and Saginaw and elsewhere, and they also gave depositions. The errors assigned all relate to the competency of direct questions and answers in plaintiff's depositions, and cross-interrogatories and answers from defendant's depositions. No more is given of any of these depositions than the questions and answers directly aimed at. No other testimony in the case is set out, but it is stated that all the facts on which hypothetical questions were put to the witnesses for their answers were proved on the trial. The record does not intimate that any objection was made that any of plaintiff's witnesses were incompetent personally for lack of knowledge on any of the topics presented. The objection made was that the questions were upon matters not within the province of expert evidence, and the reason why this was claimed was that business management was involved, outside of regular legal services. The witnesses all showed a familiarity with such legal assistance as is required in the management of large lumbering properties, and most of them disclaimed personal experience in actually running lumber business individually. But, on the argument, defendant's counsel claimed that some of the questions involved that sort of personal experience. The testimony shows that plaintiff's services did not include his personal management of the details of the mill and lumber business, but only his continuous advice and oversight of all the concerns of the estate, aside from personal interference in the details. This is expressed in the following explanation: "This case was tried upon the sole theory that the plaintiff was entitled to recover what was fair and reasonable for professional services rendered under the circumstances of the case, and the only contest made by the defendant was that the amount was excessive." The only question before us is whether the testimony of these various gentlemen contains such elements that they could show the value of plaintiff's services by their opinions. As before stated, the bill of exceptions shows affirmatively that the facts set out in the hypothetical questions were proved. As the assignments of error recite verbatim the questions and answers, and their circumstances, so far as necessary to explain the law points, they will not be recited here, but an analysis will be given of the disputed matters, covering all that was relied on as error. The questions described the date and circumstances of the will, and the situation and age of the husband and wife, as well as the subsequent acquisitions of property, and the extent and kind of the property, and situation of the business and its character, and the existence and number of the heirs at law. It was then stated that defendant, after her husband's death, employed plaintiff to take charge, advise and counsel defendant in the probating of the will, and the management of the estate, until it was closed up; that plaintiff prepared and filed the papers, and attended to the probate, and procured the appointment of defendant as special administratrix pending the litigation, and himself caused and superintended the inventorying of the whole of the estate. After the petition was filed, a contest was made, supposed to be in good faith, on behalf of the heirs at law, 12 in number, to attack the validity of the will. The will was probated, and contestants prepared an appeal. A few days before the time for completing the appeal proceedings ran out, defendant compromised for $120,000. Before and after the compromise, plaintiff advised defendant in regard to her affairs and business, being called to see her at her house three or four times a day during the whole period; and all this time was occupied by her affairs, for about five months. During this period, the whole estate was realized substantially in cash or its equivalent, and the estate closed up completely. Plaintiff had prepared himself to meet all questions arising or likely to arise in the expected litigation, and concerning the management and disposition of the estate and business, and kept defendant advised on all subjects. The witnesses were examined on these hypotheses; some on the separate services before and during the probate, and the remainder as separate basis of charge, and some upon the entire body of services from the beginning to the end. All of them, whether putting them in one or two classes, gave an aggregate value beyond what was recovered. The defendant's witnesses, who gave lower estimates, upon a different theory, and some of whom professed inability to give opinions on some parts of the services, were asked, on cross-examination, questions involving the business, advice, and management, and raised their estimates considerably. These questions and answers were objected to by defendant. A part of plaintiff's witnesses referred to the infrequency of such large estates in this region, and the difficulty of finding a standard from precise analogies. One referred to the fact that in New York such cases were common; but he testified that his estimates were not based on the standard of compensation in New York, which he said was much larger, and that he acted on his understanding of business and compensation here. The course which the argument took makes it necessary to consider with some care the subject of testimony of values of services, and on what theory it is admitted. Much of the confusion arose from confounding things essentially different. But the principles are all elementary, and the difficulty, when there is any, is merely one of application.
The phrase "expert testimony" is not entirely fortunate as designed to cover all cases where a witness may give his opinions. This is done, in a multitude of cases, by witnesses who have no more personal fitness than any one else, but who have been so placed as to have seen or heard things which can only be described to any one else by giving the impression produced on the mind or senses of the witnesses. These cases are so common that few persons ever think that what are rightly called facts are at the same time no more nor less than conclusions. Thus, impressions of cold or heat, light and darkness, size, shape, distance, speed, and many personal qualities, physical and mental, are constantly acted on as facts, although not uniformly judged by all observers, for the simple reason that the facts cannot be otherwise communicated. Any person can give such impressions without special experience or special intelligence. Beyond these every-day matters, known to all men, are things which most if not all, persons can become...
To continue reading
Request your trial